Civil Aviation A/B [B44-2018]: deliberations

Meeting report

Opening Remarks by the Chairperson

The Chairperson welcomed Committee Members and the Department of Transport to the meeting and said that spring is approaching, and more work lies ahead of the Committee. The Chairperson indicated that the Committee was elected and needed to ensure that its functions are performed efficiently and punctually. The main items on the agenda today include deliberations on the Civil Aviation Amendment Bill, the proposed list of amendments and two sets of minutes.

At its meeting next week Friday (04 September 2020), the Committee will discuss the report of the Public Protector on the implementation of the recommendations of the Public Protector Report on a systematic investigation into the illegal conversion of goods carrying Toyota Quantum Panel Vans into Passenger carrying MiniBus Taxis to transport members of the public for reward. The report was circulated to all Members of the Committee for inputs and questions.

Proposed list of amendments to the Civil Aviation Amendment Bill

Clause 1

The Bill seeks to amend and insert various definitions in order to assist in the interpretation of the Act.

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said there is a change of definition of “air service” and that is consequential as there is other legislation that are being amended by the Department. The second amendment to Clause 1 is to put that article there of the defence of civil aviation which is also consequential to the new board established.

Mr K Sithole (IFP) asked the difference between the definition of “air service” and “civil aviation”. He said if there is a need to insert civil aviation - what difference will it have on the Act?

Adv Jenkins explained the change in definition by making reference to a PowerPoint presentation made by the Department. The definition of air service makes reference to the Air Service Licensing Act. The Air Service Licensing Act is being replaced by the Air Service Act when promulgated.  That is the main reason for the Department proposing this definition - just to move from the Air Service Licensing Act to Air Service Act.

Members agreed with the amendment.

Clause 8

Clause 8 substitutes Chapter 4 of the Act so as to redefine the establishment of an aircraft accident and incident investigation authority

Adv Jenkins said the first point on this clause relates to the appointment of board members by the Minister, which is the issue for clarity. The second point is on page 20 and 41 of the Bill and has not been tabled before the Committee. This specific provision deals with an investigation when it is instituted. As the Bill stands now, there is an “and” between the two conditions that must be met for an investigation to be instituted. The Department sent an email last night informing that “or” must be changed to “and”. The reason being that either one of the two conditions can be present for an investigation to commence. The Department and State Law Advisor indicated that it is very difficult for both conditions to be present. Thus, it would be very difficult to actually give effect to this provision if “and” is not changed  to “or”. The last point on clause 8 is the spelling mistake of the word “aerodrone” it must be changed to “aerodrome”

Mr L McDonald (ANC) said the amendment of the word “and” to “or” will improve the legislation and supported this amendment. Especially regarding the way in which the Committee felt about the aspect in which an investigation can be opened.

The Chairperson said his understanding was that the Committee proposed and agreed to “and” and wanted to confirm if the Department inserted an “or” to the clause.

Adv Jenkins responded that the Department indeed inserted “or” last night. He said either one of the two conditions can be present for an investigation to commence. That is why the Department changed “and” to “or”.

Mr McDonald said he supports the amendment of “and” to “or” because it will make it easy for an investigation to be started.

Mr Sithole asked for clarity between the words “and” and “or”. He believed that “and” is much more exclusive and means something can be added in the Bill or Act. On the other hand, the word “or” means something that is not inclusive.

Adv Jenkins replied referring to page 20 of the Bill, which will constitute the new section 46 of the Bill. He said the provision deals with re-opening of an aircraft accident or incident investigation. The provision stipulates that the Minister may, upon request, decide to re-open an investigation of an aircraft accident or incident. It also provides two conditions that must be met, now both must be met.  The first condition states that there must be new or significant evidence that was not considered before that has come to light . The second condition is that the air safety investigation board findings must be set aside. He said at the moment, there must be new evidence and findings must be set aside for the Minister to re-open an investigation. He added that the amendment is good and will make the legislation more effective.

Members shared the same sentiments and agreed with the amendment.

Clause 13

Clause 13 amends section 74 of the Act to remove incorrect references and to stress the requirement for consultation by the Civil Aviation Authority with stakeholders in respect of determination of charges, fees and levies.

Adv Jenkins informed the Committee that clause13 (4) and (5) addresses two matters. The first one is that rules and regulations made by the board must be Gazetted four months prior coming into operation. The second deals with the issue of the insolvency of licensed entities that collect money on behalf of the authority.

The Chairperson said if there is any amendment that is not within the Civil Aviation Bill, such as this one, which was not within it, it will be much wiser for the Committee to include it before it is tabled in Parliament.

The Committee agreed that no further amendment was needed to clause 13.

Clause 28

Clause 28 amends section 110 of the Act to designate the Commissioner as the authority to approve the appointment of a person responsible for the execution of security programmes of an aerodrome.

Adv Jenkins said there are two amendments that need to be done both pertaining to spelling mistakes. The first one is on clause 28, the word “aerodrone” must be changed to “aerodrome”. The second amendment is on the word “action”, it must be changed to “addition”. These are the two corrections to the clause.  

The Committee agreed to the amendments.

Clause 60

Clause 60 amends section 155 of the Act to extend the regulation making powers of the Minister

Adv Jenkins indicated that this clause tries to make it clear that legal action must be taken for any failure by any person to transmit to the Civil Aviation Authority, any money, fees, charges or levies collected on behalf of the authority.

Mr Sithole raised concerns with the statement “action must be taken for any failure by any person” on clause 60. He asked if the statement should include “must” or “may”.

Adv Jenkins replied that the Committee decided to insert the word “must”. The statement is trying to address that some kind of legal action “must” be taken for any failure by any person to transmit to the Civil Aviation Authority, any money, fees, charges or levies collected on behalf of the authority.

Mr Sithole remembered a statement made by Chief Justice Mogoeng Mogoeng - Mr Mogoeng once argued that sometimes “must” should be changed to “may” hence he is asking the question. He said sometimes the Committee need to be guided by what happened in previous proceedings.

The Chairperson asserted that the intention of this amendment is to allow the Civil Aviation Authority to collect as much as it can in terms of the revenue owed to it. He said the word “must”, in this case, is proper and agreed to the amendment.

Mr Sithole asked about “G” under the extent of the amendment. What does it mean when it says any money, charges or fees the insolvent has collected “on behalf” of the South African Aviation Authority? What does “on behalf” mean?

Adv Jenkins replied that the provision addresses if an entity is mandated to collect money on behalf of the authority and becomes insolvent. Or if the money has been collected and the company collecting becomes insolvent. This provision will give the Civil Aviation Authority power to get paid its money first before other contractors get the money.

Mr McDonald explained when someone buys a plane ticket, there is a fee included by the Civil Aviation Authority. What this provision means is that, when the airline does not eventually pay the money to the South African Civil Aviation Authority and goes bankrupt, the Civil Aviation Authority will become a preferred creditor to get its money first before the South African Revenue Service (SARS) or other creditors.

The Committee agreed to the amendment.

Discussion

Adv Jenkins said there are three issues that the Committee discussed in its last meeting, that are not in the A-list. The first is that a judicial commission of inquiry must be appointed automatically if there was a fatality during an aviation accident. The second is in relation to the staff appointed by the authority. He said staff will be appointed by the Director-General (DG) of the Department. The Committee was uncomfortable with this change and suggested that it should be the Commissioner that appoints. He said this would be unproblematic from a drafting point of view. The name DG will simply be changed to Commissioner.

Mr T Mabhena (DA) asked if the appointment of staff is done by the Director-General of the Department of Transport or the Director of Civil Aviation.

Adv Jenkins replied that his understanding is that the Director of the Authority will become the Commissioner. This means that the Commissioner will not be appointing the staff of the Authority. It would be the Director-General of the Department that actually appoints. This was the issue that the Committee raised. The Committee felt that it should be the Commissioner that appoints.

Adv Adam Masombuka, Department of Transport Chief Director: Legal Services, explained that there are various committees in the Department under the auspices of Civil Aviation. There is the Air Service Licence Council and the secretariat of this particular council constitutes employees within the Department. Its function is to make sure that the council members are paid, issue emails as to when are they supposed to attend meetings etc. These employees, other than performing the secretariat function of the Air Service Council, have other responsibilities. It is not necessarily that even in this instance, the Director-General is going to appoint new staff. He is going to designate staff within the Civil Aviation branch that will be assisting as it will be an ad hoc committee. They will not be full time employees. That is why the DG designates some officials within the aviation branch of the Department to be the secretariat. The amendment does not mean that there will be new employees or additional employment to the establishment of the Department of Transport to do secretariat work of the Civil Aviation Investigation Board.

Adv Masombuka also provided clarity on the issue of the Commission.  This particular point relates to the judicial inquest inquiry, not the Commission. He remembered that the committee once said when there is an accident that is investigated, there must be automatic referral of that matter for a judicial inquest to be conducted. The committee was not referring to the commission, but to judicial inquests - judicial inquests under the auspices of magistrate courts.

The Chairperson asked why the Committee used the word appoint instead of designate. If employees that are already in the Department are going to be designated, why did the committee use the word appoint?

Adv Masombuka replied that clause 22 of the Bill did not use the word appoint, it used the word designate. The clause states that all administrative work and secretariat functions of the Aviation Safety Investigation Board, shall be carried out by employees designated by the DG.

Mr Sithole was concerned about the Amendment of Section 1 A. In the definition of Commissioner, it seems like the powers of the Director are taken away and given to the Commissioner. What will the impact of this amendment be?

Adv Jenkins replied that it is the Director that is being changed to Commissioner, so the powers of the Director become the powers of the Commissioner. Whatever that belonged to the Director now belongs to the Commissioner. It is just a name change but all functions and everything remains the same.

Adv Jenkins said the third and last issue that was discussed at the previous meeting is the issue of rules and regulations. The minutes of the Committee tabled the need for Parliament to see the regulations after having been made by the Minister. The Minister must table the regulations in Parliament for 30 days prior to the regulations coming into operation. In cases where a regulation must be made in emergency, there is a clause that suggests that the Minister can bring the regulation into operation and then table the regulation in Parliament.

Adv Masombuka said the main purpose of sending regulations is for Committee Members to provide inputs on the regulation process by the Minister so they can be added in the final draft that will be approved by the Minister.

The Chairperson asked if this means that individual Members of Parliament can provide inputs to the proposed regulations.

Adv Masombuka replied that the Bill is published for any person to comment, whether that person is a Member of Parliament or the public. As long as comments are convened within the prescribed period.

Mr C Hunsinger (DA) said the inputs tabled by Adv Masombuka are valuable and that  the National Road Traffic Act is a very applicable reference and it aligns well to the type of legislation dealt with by the Committee. He suggested that the process and procedure be described equally to how it is described in the National Road Traffic Act, and it might be accommodated within the 30-day notice period after and before. The only concern is that the Committee would not have any insight on the final version. In other words, the inputs of the Committee would be equal to anybody else's input to what was published. He felt that the Committee is engaged equal to public participation yet Members are public representatives. He suggested that the Committee should have access to the final version after public participation, so that it could have a final recommendation. 

Adv Masombuka replied that even though the process is going to be cumbersome for parliamentarians or the Committee to have a look at the final draft of the Bill, the regulation process should be a speedy regulation making process. It must be valid and be properly consulted. The wording of the National Road Traffic Act, as it stands currently, worked out very well, even from a practical point of view within the Department or the ministry.

Mr Hunsinger appreciated all Members that submitted inputs and recommendations. He was comfortable with the amendment.

The Committee agreed to the amendment.

Consideration and adoption of Committee Minutes

Minutes dated 21 and 25 August 2020

The Chairperson indicated that the minutes of 21 August 2020 dealt with the revised Annual Performance Plan (APP).

The minutes were adopted.

 The minutes of 25 August deliberated on the Civil Aviation Amendment Bill and considered an oversight report.

The minutes were adopted.

The Chairperson reminded Members that at its meeting next week Friday (04 September 2020), the Committee will discuss the report of the Public Protector on the implementation of the recommendations of the Public Protector Report on a systematic investigation into the illegal conversion of goods carrying Toyota Quantum Panel Vans into Passenger carrying MiniBus Taxis to transport members of the public for reward. The report was circulated to all Members of the Committee for inputs and questions. The opportunity will be closed on Tuesday.

The Committee Secretary reminded the Committee about an issue raised by Adv Jenkins in the minutes of 25 August 2020. She said the Committee need to get permission from the House on the issue regarding the proposed amendments that falls outside the scope of the Bill. In order for that to happen, there has to be an interim report from the Committee to the National Assembly to get permission. That proposed amendment then has to be advertised for comment from the public as there needs to be consultation. She asked if this report could be considered at the next meeting.

The Chairperson agreed to this proposal and warmly thanked everyone for joining the meeting

The meeting was adjourned